How to Get a Power of Estate After Death in New York City

The power to administer or manage the estate after a person’s death is granted only by the court. This power is granted through the court’s issuance of letters testamentary or letters of administration.

1. Determine Whether Probate is Necessary

The first step in getting the power to administer the estate is to determine whether probate is necessary. There are two questions you should ask when determining whether probate is necessary. Is it a probate or non-probate asset? Is the value of the decedent’s estate considered a small estate?

First, review the assets of the decedent and identify which are the probate from non-probate assets. You only need a power from the court to manage the estate of the decedent for probate assets.

Non-probate assets are assets with designated beneficiaries. These include IRA, 401k accounts, life insurance policies, bank accounts, or investment accounts with a designated beneficiary. Examples of these accounts are in trust for accounts, payable on death, or transfer on death. It also includes property owned under a trust, tenancy by the entirety, or joint tenancy with rights of survivorship. Non-probate assets do not need to go through probate. They can be immediately transferred to the designated beneficiary without a power issued by the court.

Probate assets, on the other hand, are generally assets solely owned by the testator without designated beneficiaries. Examples are real estate or bank accounts owned by the decedent in his own name without a designated beneficiary. The transfer of probate assets from the decedent’s estate to the beneficiaries or heirs requires the issuance of a power granted by the court through letters testamentary or letters of administration.

Second, identify whether the decedent’s estate is a small estate or not. A small estate in New York is an estate without real estate and with less than $50,000 in personal property as probate assets. In New York, a small estate does not require the issuance of letters testamentary or letters of administration from the court. The transfer of probate assets in a small estate can be made by mere affidavit in a voluntary administration proceeding.

2. Filing a Petition with the Probate Court

If there is real estate or probate assets of personal property worth more than $50,000 in New York, you need to file a petition for probate or petition for administration, depending on whether the deceased died with or without a will. This petition, once granted, will give the petitioner the power to manage the estate after death.

In case there are objections to probate, you could file a petition for preliminary letters testamentary that allow you to manage the estate after death but prohibits you from making distributions to the heirs or beneficiaries.

Getting an experienced probate attorney can save you time and costs in filing your petition because there are less chances of making mistakes which could prolong the process.

3. Issuance of Letters

To get the power to administer the estate after death, you need the court to issue letters. These letters (either testamentary or of administration) are showed to financial institutions, county recorders, and other third parties in order for the latter to grant you access to the decedent’s assets. It allows you to establish an estate account, where assets of the decedent can be transferred to. Without these letters, third parties will not grant you access to the decedent’s assets.

Getting a power of estate can be a complex matter, especially when complications arise after the filing of the petition. An experienced probate attorney will be helpful in ensuring that you receive the letters timely and without any delay. Should you need assistance in filing this petition, we at the Law Offices of Albert Goodwin are here for you. We have offices in New York City, Brooklyn, NY and Queens, NY. You can call us at 212-233-1233 or send us an email at [email protected].

The Difference Between Letters Testamentary and Letters of Administration

The court issues different letters depending on whether there is a will:

Letters Testamentary. Issued when the deceased left a valid will and the will has been admitted to probate. The person named as executor in the will receives the letters. The executor's authority comes from the will, with the court providing official confirmation.

Letters of Administration. Issued when the deceased did not leave a will (intestate) or when the will did not name a viable executor. The person appointed administrator receives the letters. The administrator's authority comes from court appointment under statutory priority rules.

Letters of Administration c.t.a. ("with will annexed") issued when there is a will but no acting executor. The administrator c.t.a. administers under the will's terms but with court appointment.

Letters of Administration d.b.n. ("de bonis non") issued when a prior fiduciary has been removed or has died, and a successor must complete the administration.

The type of letters affects the source of authority and certain procedural matters, but most operational aspects of administration are similar.

Limited Letters

In some situations the court issues limited letters that restrict the fiduciary's authority:

• Preliminary letters testamentary. Issued before the will is admitted to probate when objections are pending or when there is urgency. The preliminary executor can collect and preserve assets but generally cannot make distributions.
• Limited letters of administration. Issued for specific purposes such as pursuing a wrongful death claim while broader administration is delayed.
• Special letters. Issued for specific assets or specific tasks rather than full administration.
• Temporary letters. Issued in emergency situations pending a hearing.

The limitations are stated on the face of the letters. Third parties dealing with the fiduciary should review the letters to understand what authority has been granted.

Who Can Serve as Fiduciary

Not everyone can serve as executor or administrator. SCPA § 707 lists disqualifications:

• Infants (under 18).
• Incompetents (those judicially determined to lack capacity).
• Felons (those convicted of a felony).
• Those who are not citizens or residents (with some exceptions and procedural requirements).
• Those who are otherwise unfit due to drunkenness, dishonesty, improvidence, or want of understanding.

If the will names a disqualified executor, the court will appoint an alternate or successor. If no will exists and the priority candidates are disqualified, the court moves to the next priority class.

The Bond Requirement

Administrators are generally required to post a bond. The bond is typically twice the value of the personal property of the estate, providing protection against fiduciary misconduct. The bond requirement can be waived if:

• All distributees agree in writing to waive bonding.
• The will waives bonding for the named executor.
• The estate is small enough that bonding is not cost-effective.

Bond premiums (typically 0.5-1% of the bond amount annually) are paid from the estate or by the fiduciary personally. For larger estates, the bond cost can be substantial.

The Process of Obtaining Letters

The procedural steps to obtain letters:

1. Gather required documents. Death certificate, will (if any), list of distributees, list of assets, and supporting information.
2. Prepare the petition. The formal request to the court for letters, including all required information.
3. File with the appropriate Surrogate's Court. The court of the county where the decedent lived.
4. Pay the filing fee. Based on the estate's value, typically $45-$1,250.
5. Serve citations. Notice to all distributees and other interested parties who have not waived.
6. Address objections. If anyone objects to the petition, the issues must be resolved.
7. Attend any required court appearances. Most uncontested cases are decided on submitted papers.
8. Receive letters. Once the court approves the petition, letters are issued.

The Timeline for Letters

Time to obtain letters varies:

• Uncontested cases with waivers from all parties. 4-8 weeks in most counties.
• Cases requiring citations to be served. 8-16 weeks.
• Cases with objections or other complications. 6 months to several years.

The timeline depends on the county, the complexity of the case, and whether there are disputes. Manhattan typically processes faster than the outer boroughs. Cases prepared correctly the first time avoid the bouncing back that delays processing.

What Happens After Letters Are Issued

The fiduciary uses the letters to:

• Open an estate bank account.
• Close the decedent's individual accounts.
• Collect life insurance proceeds payable to the estate.
• Transfer brokerage accounts.
• Take control of safe deposit boxes.
• Sell or distribute real estate.
• Address creditor claims.
• File estate tax returns.
• Make distributions to beneficiaries.
• Address any other administrative matters.

The letters are the fiduciary's basic credential for all of these activities. Certified copies are needed for multiple institutions and may be obtained from the court for a fee.